Otuko v Kinyanjui & another

owner, Femina Kageha (“Femina”). He denied causing damage to any property during the eviction, or any other wrongdoing on his part. Additionally, the 1st respondent cross- claimed for a permanent injunction and costs of the suit against the appellant. 3. The appellant led a reply to the 1st respondent’s defence and counterclaim denying all the contents therein. Overall, he maintained that the counterclaim was not valid. 4. The Attorney General is the 2nd respondent, led a statement of defence dated 1st July 2013 denying all the appellant’s allegations. The 2nd respondent asserted that the suit was fatally defective, stating that the appellant could only challenge the decision of the Tribunal through judicial review and not by ling a fresh suit. 5. The learned Judge considered the pleadings and the evidence tendered in court and dismissed the appellant’s suit in a judgment delivered on 24th October 2019. The gist of the learned Judge’s decision was that the transaction between the appellant and Otiende was a nullity because, at the time Otiende purported to sell the property to the appellant, he had already sold the same property to Femina. Consequently, the learned Judge found in favour of the 1st respondent and issued a permanent injunction against the appellant. 6. The appellant, being dissatised with the decision, lodged a thirteen-point memorandum of appeal dated 6th August 2021 as follows: “ 1. That the learned Judge erred in law and fact in failing to nd that the appellant having not been a party to the proceedings and claim in Eldoret CM. Award No. 27 of 2011 - Joseph Muinami Kinyanjui vs. Jason Otiende, the award therein could not bind him and he was entitled to seek a declaration to that eect from the court by dint of order 3 rule 9 of the Civil Procedure Rules, 2010. 2. That the learned Judge erred in law and fact in nding that the award of the Tribunal could only be challenged by judicial review or an appeal while failing to consider that the appellant was not a party to the said matter and an order was not made against him in the said matter and further by dint of the binding authorities in Johana Nyokwoyo Buti vs. Walter Rasugu Omariba suing through his attorney Beutha Onsomu Rasugu & 2 Others (2011) eKLR and Reuben Kamnocere v Hellena Wakina Mauricio, 2015 eKLR declaratory proceedings could be instituted by the appellant. 3. That the learned Judge erred in law and fact in nding that the appellant had evicted the 1st defendant from the land without any evidence to support the same while instead the actual position was that the 1st respondent had made several attempts to remove the appellant unlawfully. 4. That the learned Judge erred in law and fact in failing to nd that the suit land was 1/4 an acre purchased by the appellant and not 1/8th as claimed by the 1st respondent which was a totally dierent land parcel. 5. That the learned Judge erred in law and fact in failing to nd that no lawful interest could be acquired by the 1st respondent from Feminah Kageha as by the time any dealings were being done, she was dead and no personal representative of the estate existed to carry out any dealings as provided for in section 82 (b) (ii) of the Law of Succession Act, Cap. 160. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1712/eng@2026-09-25 2

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6. That the learned Judge erred in law and fact in failing to nd that the 1st respondent had no claim in equity as it follows the law and the legal position was that he could not acquire any lawful interest when Feminah Kageha was dead and no personal representative existed. 7. That the learned Judge erred in law and fact in failing to nd that the claim before the Tribunal was a nullity and its subsequent award not binding as the claim before it was outside the ambit of section 3 of the Land Dispute Tribunals Act, No. 18 of 1990 (repealed) and also there was a breach of the Land Dispute Tribunal (Forms and Proceedings) Rules, 1993 by the 1st respondent. 8. THAT the learned Judge erred in law and fact in falling to nd that the dealings by the 1st respondent in transferring ownership of the property at the Uasin - Gishu County Oces during the pendency of the suit was in breach of an existing court order obligating the maintenance of the status - quo and the tenet of lis - pendis. 9. That learned Judge erred in law and fact in failing to nd that the appellant was entitled to damages for the attempt by the 1st respondent to unlawfully evict him in purporting to execute a judgment that did not bind him or was not directed at the appellant. 10. That the learned Judge erred in law and fact in granting the 1st respondent relief by way of an injunction and eviction orders that had not been duly pleaded in a counter-claim as required by order 7 rule 3 of the Civil Procedure Rules, 2010. 11. That the learned Judge erred [in] law and fact in granting an injunction to the 1st respondent while the evidence demonstrated that the appellant had been in occupation and the same would amount to an eviction order that had not been pleaded or a mandatory injunction that was not duly pleaded. 12. That the learned Judge erred [in] law and fact in disallowing the appellant's suit with costs while it had been proved to the required standards and in failing to consider the statements by Jason Mahanda - deceased and Juma which has been admitted pursuant to section 33 of the Evidence Act, Cap. 80 which demonstrated that the appellant had acquired ¼, acre of land. 13. That the learned Judge erred in law and fact in failing to nd that the late Jason Mahanda had 1 acre of land and had sold a ¼ of an acre to the appellant.” 7. At the hearing of the appeal on 9th June 2026, the appellant was represented by learned counsel, Mr. Kiprop, while the 1st respondent appeared in person and learned state counsel, Ms. Odeyo, was in attendance for the 2nd respondent. The appellant opted to rely on the written submissions dated 13th April 2026 and the 1st respondent, on his part, indicated that his replying adavit sworn on 25th May 2026 would serve as his submissions. On her part, Ms. Odeyo, while disclosing that the Attorney General did not participate in the trial or le any submissions before this Court, stated that they were aligning themselves with the position of the 1st respondent. 8. Asserting that the 1st respondent did not le any counterclaim, the appellant faulted the learned Judge for granting an injunction, issuing eviction orders and directing the police to provide security during https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1712/eng@2026-09-25 3

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the eviction. Insisting that the learned Judge issued orders without jurisdiction, the appellant argued that there was no proper counterclaim as required by Order 7 Rule 3 of the Civil Procedure Rules. Reliance was placed on Caltex Oil (Kenya) Limited vs. Rono Limited [2016] KECA 457 (KLR) for the proposition that a court cannot award orders not sought by a party. 9. Still faulting the learned Judge for travelling outside the parties’ pleadings, the appellant submitted that the learned Judge erred, rstly by nding that the appellant had evicted the 1st respondent without any evidence, and secondly, by making orders on an issue not pleaded by the 1st respondent. The appellant relied on Independent Electoral and Boundaries Commission & Another vs. Mule & 3 Others [2014] KECA 890 (KLR) to argue that parties are bound by their pleadings and the issues upon which a trial court may pronounce itself are limited to the pleadings. 10. Attacking the merits of the orders issued by the learned Judge, the appellant submitted that the claim for an injunction was unsustainable as the evidence demonstrated that the appellant was in occupation of the land at the commencement of the suit. According to the appellant, a mandatory injunction amounted to an eviction order, which order was not sought. Lucy Wangui Gachara vs. Minudi Okemba Lore [2015] eKLR was cited in support of the argument. 11. Turning to another point, the appellant asserted that the dismissal of his suit was erroneous, as having not been a party to the proceedings before the Chief Magistrate’s Court, the award could not bind him, and he was therefore entitled to seek a declaratory judgment by dint of Order 3 Rule 9 of the Civil Procedure Rules. Still pursuing the argument, the appellant faulted the learned Judge for nding that the award could only be challenged through judicial review or appeal. According to the appellant, an appeal against the award of the Land Disputes Tribunal to the Provincial Appeals Committee was limited to the parties to the matter. Additionally, the appellant faulted the learned Judge for failing to nd that the claim before the Tribunal was a nullity as it was outside the ambit of section 3 of the Land Dispute Tribunals Act No. 18 of 1990 (repealed). The appellant submitted that he could only move the trial court in the manner he did because he could not invoke section 34 of the Civil Procedure Act, having not been a party to the proceedings before the Tribunal. 12. Contending that his parcel of land was dierent from that of the 1st respondent, the appellant submitted that the learned Judge erred in failing to nd that the suit land was a ¼ of an acre, which was dierent from the 1/8 of an acre claimed by the 1st respondent. According to the appellant, the 1st respondent had [not] established how a purchase of 1/8 of an acre morphed into a claim for a ¼ of an acre. 13. Still hammering home his assertion that the 1st respondent never acquired interest in the suit land, the appellant argued that the learned Judge erred in not concluding that no lawful interest could have been acquired from Femina, at the time the 1st respondent purportedly acquired the suit land, because she was deceased and her estate was without an administrator. According to the appellant, the demise of Femina was indeed conrmed by the 1st respondent during the trial. 14. The appellant faulted the learned Judge’s holding on the validity of the acquisition by the 1st respondent and his conclusion on the application of the maxim of equity. He also submitted that the 1st respondent violated an order for maintenance of the status quo by changing the ownership of the land during the pendency of the suit. The appellant additionally submitted that the learned Judge erred by failing to nd that the transfer of ownership breached a court order. 15. Finally, the appellant argued that it was erroneous for the learned Judge not to award him damages for the attempt by the 1st respondent to unlawfully evict him purportedly in execution of a judgment that did not bind him (appellant). The appellant submitted that he was entitled to damages because the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1712/eng@2026-09-25 4

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attempted eviction was not executed by a licensed auctioneer and that he adduced evidence showing that the 1st respondent destroyed his property. The appellant urged us to allow his appeal and award him Kshs. 86,760 as prayed in the plaint. The appellant cited the decisions in Moi Education Centre Co. Ltd vs. William Musembi & 16 Others [2017] eKLR and Quick Lubes E.A. Ltd vs. Kenya Railways Corporation [2012] KEHC 5855 (KLR) in support of his arguments. 16. The 1st respondent, in his replying adavit sworn on 25th May 2026 averred that he opposed the appeal as grounds 1- 4 had no basis at all; grounds 5 - 6 were far from the truth, annexing a copy of the will of Femina in this regard; ground 7 was a nullity as the appellant did not appeal against the Tribunal’s decision; grounds 8-10 had no proof; and on ground 11, that the appellant was evicted through an eviction order that was duly pleaded before the court. He concluded that the appeal is bad in law and t for dismissal. 17. The principles to guide this Court in determining a rst appeal were highlighted in the celebrated case of Selle and Another vs. Associated Motor Boat Company Ltd and Others [1968] 1 EA 123 thus: “An appeal to this court from a trial by the High Court is by way of retrial, and the principles upon which this court acts in such an appeal are well settled. Briey put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s ndings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally (Abdul Hameed SaJ v. AH Mohamed Sholan (1955), 22 E.A.C.A. 270).” 18. The positions of the parties as elucidated from the record were that the appellant, testifying as PW1, stated that he purchased plot No. 331 from Otiende for Kshs. 168,000 and took possession in a year he could not remember. The appellant stated that on 22nd February 2012, the 1st respondent, his neighbor, demolished his house, claiming the land. 19. David Kibet Tarus testied as PW2 and told the trial court that the appellant purchased a ¼ of an acre of land from Otiende in 1989. Enoka Kisia Indula, PW3, stated that Otiende sold portions of his land to both the appellant and the 1st respondent. 20. The 1st respondent testied as DW1, stating that the appellant was served with notices to attend the Tribunal and that the dispute was heard on various dates and the award was adopted on 21st December 2011. After eviction, the appellant and Mr. Otiende went to court where they were directed to le judicial review proceedings. 21. Musa Hammed (DW2), a brother of the late Femina, testied that after his sister passed away in 2002, he sold her parcel of land measuring 1/8 of an acre to the 1st respondent. The witness produced assorted documents to back up his evidence. 22. After considering the memorandum of appeal, the record of appeal and the submissions by the parties, we nd that a number of issues arise for determination. The rst issue is whether the learned Judge erred in not nding that the appellant was not bound by the award adopted in Eldoret Chief Magistrate’s Court Award No. 27 of 2011. The award was made in the Uasin Gishu Land Disputes Tribunal where the 1st respondent had sued Otiende. Otiende is the person the appellant claimed to have purchased the suit land from. The proceedings before the Tribunal disclosed that the 1st respondent purchased Plot No. 331 at Langas, Kasarani area from Asumani Liyalu Malwa and Musa Hamad Kilomboto who were https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1712/eng@2026-09-25 5

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the brothers of the late Femina. After considering the circumstances surrounding the transactions, the Tribunal found in favour of the 1st respondent. 23. We note that in his evidence-in-chief the appellant contradicted himself as to whether he was aware of and attended the proceedings before the Tribunal. At page 311 of the record, he is captured to have testied that: “ I am aware of the Tribunal case No. 24 of 2011 that was adopted in the proceedings in Eldoret Chief Magistrate Award No. 27 of 2011 – Joseph Muinami Kinyanjui vs Jason Otiende. I was a witness before the Tribunal. I was called as a buyer of the land. I was given an opportunity before the Tribunal. The parties before the Tribunal were Mr. Joseph M. Kinyanjui [who] was the claimant and Joseph Otiende [who] was the respondent. I was never invited for the hearing.” 24. Whatever the case, it is our considered view that the issue as to whether or not the appellant was aware of the proceedings before the Tribunal is not a determinative factor in this appeal. Consequently, this ground of appeal fails. 25. Another issue that arises is whether the learned Judge erred in nding that the award of the Tribunal could only be challenged through an appeal or by way of judicial review. Section 8(1) of the Land Disputes Tribunals Act, Cap 303A (repealed) provided as follows: “ Any party to a dispute under section 3 who is aggrieved by the decision of the Tribunal may, within thirty days of the decision, appeal to the Appeals Committee constituted for the Province in which the land which is the subject matter of the dispute is situated.” 26. Section 8(9) went ahead to provide for a second appeal thus: “Either party to the appeal may appeal from the decision of the Appeals Committee to the High Court on a point of law within sixty days from the date of the decision complained of: Provided that no appeal shall be admitted to hearing by the High Court unless a Judge of that Court has certied that an issue of law (other than customary law) is involved.” 27. The avenue provided for appeal may not have been suitable to the appellant who was not a party before the Tribunal. The learned Judge cannot therefore be faulted for concluding that the option available to the appellant was to seek judicial review orders to quash the decision of the Tribunal. Additionally, the repealed Land Disputes Tribunals Act did not contemplate the ling of declaratory suits with regard to the awards by the tribunals or orders of the magistrates’ courts adopting those awards. In Catherine C Kittony vs. Jonathan Muindi Dome & 2 Others [2019] KECA 84 (KLR), this Court laid down the options that were available to a party dissatised with the decision of a land disputes tribunal as follows: “ Was the appellant justied in mounting this suit? Mr. Odongo submitted that it was trite law that where a statute provided a dispute resolution mechanism, it is proper that the courts cede to that jurisdiction. The appellant conceded that the award of the 2nd respondent was adopted as a judgment of the court. Upon adoption of the award and issuance of the decree, the award ceased to exist. That if the appellant was dissatised with the decree, she should have exhausted appellate jurisdiction provided for under the Land Disputes Tribunal Act or led Judicial Review Proceedings. She opted for neither. Instead, she led a civil suit the precursor to this appeal, which was not a proper forum. She justied her decision on the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1712/eng@2026-09-25 6

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ground that she could not appeal or commence judicial proceedings because either way she was time-barred. We wholly agree with and endorse the submissions by Mr. Odongo on this aspect. The Land Dispute Tribunal had mechanisms to deal with outcomes such as the one rendered by the 2nd respondent. The award by the 2nd respondent ceased to exist upon adoption by the court as its judgment and a decree. The award cannot be challenged by ling a fresh suit as it is trite law that where a statute establishes a dispute resolution mechanism, that mechanism must be followed and exhausted, where a party fails to do so he cannot be heard to say that his rights were denied. (See Paul Muraya Kaguri v Simon Mbaria Muchuru [2015] eKLR). As we have determined elsewhere in this judgment, the jurisdiction of the 2nd respondent in this matter was pursuant to section 3 of the Land Disputes Tribunal Act. The 2nd respondent had jurisdiction to determine the dispute before it. In the persuasive case of Florence Nyaboke Machani v Matere Amos Ombui [2018] eKLR, the court dismissed the appeal when it held that the Land Disputes Tribunal was a mechanism established by statute and the appellant was bound by the decision of the tribunal which was adopted by the court.” 28. The options that were available to the appellant are as spelt out in the cited decision, and that did not include the ling of a fresh suit. Although this appeal can be disposed of at this point with a nding that the learned Judge had no jurisdiction to entertain the appellant’s suit, we nd it necessary and in the interest of the parties to consider the remaining grounds of appeal. 29. It has been argued that the learned Judge erred by nding that the appellant had evicted the 1st respondent. We have scrutinized the impugned judgment, and we do not see any such nding. 30. The appellant faulted the learned Judge for failing to nd that he purchased a ¼ of an acre and not 1/8 of an acre, which was being claimed by the 1st respondent. We will address this ground together with the appellant’s contention that the learned Judge erred in failing to nd that no lawful interest or claim in equity was conferrable upon the 1st respondent because Femina was deceased at the time the property was purportedly sold to the 1st respondent. Essentially, the appellant faults the learned Judge for not holding that the 1st respondent had no lawful interest in the suit land. In answer to the appellant’s complaint, we reproduce the learned Judge’s analysis of the evidence as follows: “ In the rst agreement dated 14th day of June 1987, the plot was sold to Miss Femina Kageha by Jason Otiende for the sum of Kshs. 25,000. The plot is situate on land reference number 8500 in the Southern part of Uasin Gishu. The buyer took possession on signing of the agreement. The second agreement was a sale to the defendant on 30th October 2002 by one Aumani Liyayi and Musa Kilomboto who were brothers of the deceased, Miss Femina Kageha. Through the agreement, the brothers purport to sell Langas Phase II Sheet Plot No. 331 a non-existent property in the records of the Land registrar, allegedly owned by Femina Kageha and that the sale was done in the year 2000 and a consideration of Kshs, 200,000 paid. All this was done after Femina Kageha had passed on. In the third agreement dated 14th August 2011, Jason Otiende Mahanda purported to sell the land to the plainti at a consideration of Kshs. 168,000 and undertook to execute all documents of conveyancing in respect of the property and the rents outstanding. Sometimes in August 2011, the plainti (sic) moved Uasin Gishu Land Disputes Tribunal against Jackson Otiende Mahanda and upon hearing the claimant in the absence of the respondent https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1712/eng@2026-09-25 7

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who was served but refused to attend, the tribunal awarded land to the claimant. The decision of the tribunal was adopted by the court as a judgment and a decree issued. I do nd that Mr. Jason Otiende Mahanda had no right to sell the land to the plainti having sold the same earlier to Femina Kageha as property that belonged to the estate of the deceased.” 31. The learned Judge went ahead to identify the genesis of the dispute to be Otiende’s action of selling the same piece of land twice to dierent persons. In that regard, he opined that: “ The transaction between the plainti and Jason Otiende was a nullity and an aront to the equitable principle that where the two equities are equal, the rst one in time prevails as the latter had sold the property to Femina Kageha before purporting to sell the same to the plainti.” 32. Based on the evidence adduced by the parties, the learned Judge established that the suit land was initially sold to Femina by Jason Otiende for Kshs 25,000 before the same Otiende Mahanda again sold the suit land to the appellant for Kshs. 168,000. Our perusal of the record does not evince any alternative to the conclusion by the learned Judge, and we cannot fault him for his conclusion. 33. In our view, having found that the land had already been sold to Femina, it was unnecessary for the court to make a determination on the size of land. The record is clear that the appellant and the 1st respondent lay claim to the same parcel of land. The history of the transactions in respect of the suit land shows that Otiende rst sold the land to Femina before reselling it, almost a decade later, to the appellant. The Tribunal, whose decision remains undisturbed to date, agreed with the 1st respondent. We therefore do not nd any merit in the appellant’s arguments on this point. 34. On the contention by the appellant that it was erroneous for the learned Judge not to nd the decision of the Tribunal to be a nullity, we reiterate that the appellant, having failed to challenge the award through the recognized procedures, could not succeed before the learned Judge. 35. There was the contention by the appellant that the learned Judge erred in failing to consider the statements of Otiende, who was said to be deceased, and Juma that had been admitted pursuant to section 33 of the Evidence Act. We have perused the record, and there is no indication that the said statements were admitted or brought to the attention of the trial court. It follows that this ground of appeal fails. 36. Finally, the appellant contended that a permanent injunction and an eviction order were not issuable to the 1st respondent since he had not counterclaimed for them. The 1st respondent’s answer was that he sought the orders in his pleadings. We have perused the undated statement of defence led by the 1st respondent in reply to the amended plaint, and although the word counterclaim is not expressly used, it is clear that the pleading is a defence as well as a counterclaim. The 1st respondent, in the selfgenerated pleading, mounts a defence to the appellant’s claim at paragraphs 3 -13 and expressly seeks the dismissal of the claim, before putting forth a counterclaim from paragraphs 15 - 18. The learned Judge cannot therefore be said to have entertained a non-existent pleading. This ground of appeal, like the rest, must therefore fail. 37. The upshot of the foregoing is that the appeal fails in its entirety and is dismissed. 38. As regards costs of the appeal, we nd no reason advanced by the appellant warranting our departure from the general principle that costs follow the event. That being so, we award the costs of the appeal https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1712/eng@2026-09-25 8

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to the 1st respondent against the appellant. The 2nd respondent shall bear his own costs of the appeal, having not led any papers both at the trial and in the appeal. 39. It is so ordered. DATED AND DELIVERED AT ELDORET THIS 25TH DAY OF SEPTEMBER 2026. M. GACHOKA C.Arb, FCIArb JUDGE OF APPEAL W. KORIR JUDGE OF APPEAL L. M. NDOLO JUDGE OF APPEAL I certify that this is a True copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1712/eng@2026-09-25 9

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